Sk. Samsud Doha vs The West Bengal State Electricity ... on 2 May, 2012

[Cites 6, Cited by 7]

Calcutta High Court (Appellete Side)

Sk. Samsud Doha vs The West Bengal State Electricity ... on 2 May, 2012

Bench: Joymalya Bagchi

                                       1



(74)
02.05.2012
                           W. P. No. 25482 (W) of 2010
  ah
                           Sk. Samsud Doha
                                     -vs-
         The West Bengal State Electricity Distribution Co. Ltd. & Ors.


               Mr. Deba Prosad Mukherjee,
               Mr. Debjit Mukherjee,
               Mrs. Susmita Chatterjee
                                ... for the petitioner.


                Mr. Ram Mohan Chattopadhyay
                              ... for the WBSEDCL.


       The writ petitioner has approached this Court challenging

inaction on the part of the respondent-Electric Company

(hereinafter referred to as "WBSEDCL") to provide electric connection to the petitioner's premises. The case of the petitioner is that he is a co-sharer of the premises in question. A partition suit is pending by and between the petitioner and the private-respondent nos. 5 to 7 herein being Title Suit No. 42 of 2004 pending before learned 1st Civil Judge, Senior Division, Howrah. The petitioner further states that by order dated 20.7.2010 the learned civil court has directed the petitioner and the private-respondents to maintain status quo as to nature, character and possession of the suit property. It is pertinent to point out that WBSEDCL is not a party to the said suit. On 3rd June, 2009 the petitioner made an application to WBSEDCL for electric connection. Spot verification was made by WBSEDCL and a quotation of Rs. 14,692/- was also raised on the petitioner. Pursuant thereto, the petitioner has deposited the said amount. Thereafter due to the objection on the part of the 2 private-respondents, WBSEDCL appears to have failed and/or neglected to provide electric supply to the petitioner. In spite of repeated service, nobody appears on behalf of the private-respondents. No affidavit has also been filed on their behalf in spite of opportunity given to them.

The WBSEDCL has filed affidavit-in-opposition to the writ petition. From the said affidavit it appears that the crux of the reason for not effecting supply is that there is a civil dispute pending by and between the petitioner and the private- respondents with regard to title and possession of the premises and that due to obstruction on the part of the private- respondents the said WBSEDCL was unable to erect electric poles in the land claimed by the private respondents to effect such supply. Further case made out by WBSEDCL in its affidavit-in-opposition is that necessary way leave had to be provided by the petitioner for effecting supply and since the petitioner had failed to provide the same, such supply could not be effected. In support of such submission, learned counsel appearing for the WBSEDCL refers to Regulation 3.2.1 of the West Bengal Electricity Regulatory Commission (Standards of Performance of Licensees Relating to Consumer Services) Regulations, 2010, (hereinafter referred to as Regulations, 2010) wherein it is provided that way leave permission in specified format must be submitted by the applicant for obtaining supply. I have perused the materials on record and have considered the submissions made on behalf of the parties. Section 43(1) 3 and (3) of the Electricity Act, 2003 (hereinafter referred to as the Act of 2003) reads as follows:

(1) "Save as otherwise provided in this Act, every distribution licensee, shall, on an application by the owner of occupier of any premises, give supply of electricity to such premises, within one month after receipt of the application requiring such supply :

Provided that where such supply requires extension of distribution mains, or commissioning of new sub- stations, the distribution licensee shall supply the electricity to such premises immediately after such extension or commissioning or within such period as may be specified by the Appropriate Commission :

Provided further that in case of a village or hamlet or area wherein no provision for supply of electricity exists, the Appropriate Commission may extend the said period as it may consider necessary for electrification of such village or hamlet or area."

(3) "If a distribution licensee fails to supply the electricity within a period specified in sub-section (1), he shall be liable to a penalty which may extend to one thousand rupees for each day of default."

A bare perusal of the aforesaid provision would show that it is a mandatory statutory duty on the part of the licensee to provide electricity to any premises within the area of its operation. Sub-section (3) of the said section provides that a failure to effect such supply within specified period would entail penal consequences. It is, therefore, untenable in law to suggest that the statutory duty on the part of the licensee can be 4 avoided on the specious plea that the applicant has failed to provide necessary access for supply of electric energy. In fact, the Act of 2003 provides for the course to be adopted in such cases. Part VIII of the said Act contains various enabling provisions empowering the licensee to undertake various works for the purpose of effecting electric supply within its area of operation. One of such power is embodied in Section 67 of the Act. Section 67 provides as follows:-

"67. Provision as to opening up of streets, railways, etc.-

(1) A licensee may, from time to time but subject always to the terms and conditions of his licence, within his area of supply or transmission or when permitted by the terms of his licence to lay down or place electric supply lines without the area of supply, without that area carry out works such as -

(a) to open and break up the soil and pavement of any street, railway or tramway;

(b) to open and break up any sewer, drain or tunnel in or under any street, railway or tramway;

(c) to alter the position of any line or works or pipes other than a main sewer pipe;

(d) to lay down and place electric lines, electrical plant and other works;

(e) to repair, alter or remove the same;

(f) to do all other acts necessary for transmission or supply of electricity.

(2) The Appropriate Government may, by rules made by it in this behalf, specify, -

(a) the cases and circumstances in which the consent in writing of the Appropriate Government, local authority owner or occupier, as the case may be shall be required for carrying out works;

(b) the authority which may grant permission in the circumstances where the owner or occupier objects to the carrying out of works;

(c) the nature and period of notice to be given by the licensee before carrying out works;

(d) the procedure and manner of consideration of objections and suggestions received in accordance with the notice referred to in clause (c);

(e) the determination and payment of compensation or rent to the persons affected by works under this section;

(f) the repairs and works to be carried out when emergency exists;

(g) the right of the owner or occupier to carry out certain works under this section and the payment of expenses therefor;

(h) the procedure for carrying out other works near sewers, pipes or other electric lines or works;

(i) the procedure for alteration of the position of pipes, electric lines, electrical plant, telegraph lines, sewer lines, tunnels, drains, etc.;

(j) the procedure for fencing, guarding, lighting and other safety measures relating to works on streets, railways, tramways, sewers, drains or tunnels and immediate reinstatement thereof;

(k) the avoidance of public nuisance, environmental damage and unnecessary damage to the public and private property by such works;

(l) the procedure for undertaking works which are not reparable by the Appropriate Government, licensee or local authority;

(m) the manner of deposit of amount required for restoration of any railways, tramways, waterways, etc.;

(n) the manner of restoration of property affected by such works and maintenance thereof;

(o) the procedure for deposit of compensation payable by the licensee and furnishing of security; and

(p) such other matters as are incidental or consequential to the construction and maintenance of works under this section.

(3) A licensee shall, in exercise of any of the powers conferred by or under this section and the rules made thereunder, cause as little damage, detriment and inconvenience as may be, and shall 6 make full compensation for any damage, detriment or inconvenience cause by him or by any one employed by him.

(4) Where any difference or dispute including amount of compensation under sub-section (3) arises under this section, the matter shall be determined by the Appropriate Commission.

(5) The appropriate Commission, while determining any difference or dispute arising under this section in addition to any compensation under sub-section (3), may impose a penalty not exceeding the amount of compensation payable under that sub-section."

In exercise of powers conferred by Clause (e) of sub- section (2) of Section 176 read with sub-section (2) of Section 67 of the Act of 2003 Central Government has framed the Works of Licensees Rules, 2006.The said rules have come into effect on and from 18.04.2006. Rule 3 of the aforesaid Rules reads as follows :

3. Licensee to carry out works - (1) A licensee may -

(a) carry out works, lay down or place any electric supply line or other works in, through, or against, any building, or on, over or under any land whereon, whereover or whereunder any electric supply-line or works has not already been lawfully laid down or placed by such licensee, with the prior consent of the owner or occupier of any building or land;

(b) fix any support of overhead line or any stay or strut required for the purpose of securing in position any support of an overhead line on any building or land or having been so fixed, may alter such support:

Provided that in case where the owner or occupier of the building or land raises objections in respect of works to be carried out under this rule, the licensee shall obtain permission in writing from the District Magistrate or the Commissioner of Police or any other officer authorised by the State Government in this behalf, for carrying out the works :

Provided further that if at any time, the owner or occupier of any building or land on which any works have been carried out or any support of an overhead line, stay or strut has been fixed shows sufficient cause, the District Magistrate or the Commissioner of Police, or the officer authorised may by order in writing direct for any such works, support, stay or strut to be removed or altered.

(2) When making an order under sub-rule (1), the District Magistrate or the Commissioner of Police or the officer so authorised, as the case may be, shall fix, after considering the representations of the concerned persons, if any, the amount of compensation or of annual rent, or of both, which should in his opinion be paid by the licensee to the owner or occupier.

(3) Every order made by a District Magistrate or a Commissioner of Police or an authorised officer under sub-rule (1) shall be subject to revision by the Appropriate Commission.

(4) Nothing contained in this rule shall effect the powers conferred upon any licensee under section 164 of the Act.

The Act of 2003 therefore clearly lays down a scheme wherein it is the duty of the licensee to take out necessary works to ensure that the supply of electricity reaches the doorstep of 8 the applicant. In the event the licensee find that there are obstructions or difficulties in effecting supply and the applicant is unable to provide way leave, it would be the duty of the licensee to undertake necessary works as provided under Part VIII of the Electricity Act, 2003 read with the rule 3 of the Works of Licensees Rules 2006 to ensure that such supply is effected. Mere objection of a owner/occupier to lay such works on his land cannot be a reason for the licensee to shirk its statutory duty to supply electric energy which are essential service and an ingredient of the fundamental right to life of an individual in modern-day society.

In the event of any objection by a owner or occupier of land over which works are required to be laid is received, the licensee is required to obtain permission from the District Magistrate or the Commissioner of Police or any other Officer authorised by the State government in that behalf in terms of Rule 3 of the Works of Licensees Rules, 2006 and also pay compensation, if any, to such owner or occupier in terms of the provisions of Section 67 of the Act 2003 read with Rule 3 of the aforesaid rules.

Regulation 3.2.1. of the Regulations of 2010 has to be read in the light of the aforesaid statutory scheme. To hold that the licensee would not supply electricity to an applicant who fails to provide way leave as indicated in the said regulation without resorting to its statutory powers under Part VIII of the Act including section 67 therein, would render the said provisions of the Act otiose. Any interpretation of the said 9 regulations which runs contrary to the provisions of the Act of 2003 and against the scheme provided therein would be ultra vires the said Act.

It is settled proposition of law that regulations have to be read harmoniously with provisions of the principal Act and the same cannot be construed in violation thereof.

Reference may be made to the case of ITW Signode India Ltd. V. Collector of Central Excise reported in (2004) 3 SCC 48 wherein at para 56, the Supreme Court held, as follows :

"It is a well-settled principle of law that in case of a conflict between a substantive Act and delegated legislation, the former shall prevail inasmuch as delegated legislation must be read in the context of the primary/legislative Act and not vice versa."

I am therefore of the opinion that regulation 3.2.1 of Regulations 2010 cannot override the mandatory statutory duty of the licensee to supply electric energy to an applicant (who has failed to provide way leave) without resorting to its statutory powers of setting up electric works in terms of Section 67 of Act of 2003 read with Rule 3 of the Works of Licensees Rules, 2006.

That apart, in the instant case the petitioner had applied for electric connection on 03.06.2009 whereas regulation 3.2.1 of WBCERC 2010 have been notified only in 2010. Hence the application of the petitioner for electric connection need not have complied with the requirements laid down in the aforesaid regulations which had been subsequently notified and were not in force with the application for electric supply was made. 10 On similar facts, the Supreme Court while interpreting Section 67 of the Act of 2003, in the case of Sri Chandu Khamaru -vs- Nayan Malik & Ors reported in (2012)1 WBLR (SC) 212, held as follows:

"10. We may now apply the aforesaid provisions of Electricity Act, 2003 to the facts of the present case. The appellant has a statutory right to apply for and obtain supply of electricity from the distribution licensee and the distribution licensee has a corresponding statutory obligation to supply electricity to the appellant. Respondent Nos. 1 to 3 also do not object to the supply of electricity by the distribution license to the appellant as it will be clear from the averments made in writ petition No. 345 of 2005 filed by them before the High Court but they object to the line for supply of electricity being drawn through the passage in Dag Nos. 406, 407 and 409 which they claim to be theirs. The further grievance of the respondent Nos. 1, 2 and 3 is that they were not make parties in the earlier Writ Petition No. 18220 of 2004 filed by the appellant in which the High Court directed the distribution licensee to effect supply of electricity to the house of the appellant. The case of the appellant, on the other hand, is that the passage is not a private passage of respondent Nos. 1 to 3 but is a common passage and therefore an electric line can be drawn through this common passage. This dispute will have to be resolved in Civil Suit No. 83 of 2004 pending in the Court of Civil Judge (Junior Division), Howrah, or in any other suit, but pending resolution of this dispute between the parties, the appellant cannot be denied supply of electricity to his house.

11. We, therefore, set aside the order of the learned Single Judge as well as the impugned order of the 11 Division Bench and dispose of the Writ Petition of respondent Nos. 1 to 3 with the direction that the distribution licensee will find out whether there is any other way in whuich electric line can be drawn for supply of electricity to the house of the appellant, other than the disputed passage in Dag Nos. 406, 407 and 409. If there is no other way to supply electricity to the house of the appellant, the distribution licensee will follow the provisions of sub-section (2) of Section 67 of the Electricity Act, 2003 for carrying out the work for supply of electricity to the house of the appellant. This exercise will be completed within a period of six months from today and till the supply of electricity to the house of the appellant is effected through some other way, supply of electricity to the house of the appellant will not be disconnected. The appeal is allowed to the extent indicated in this judgment. No costs."

The other contention relating to pendency of the civil suit and the order of status quo as to nature and character of the suit property also does not stand in the way of WBSEDCL to discharge its statutory duty and provide electric connection to the petitioner who is admittedly an occupier and co-sharer of the premises in question. The order of injunction directs to maintain status quo as to nature, character and possession would not be violated in any way if the electric connection is provided in the said premises. That apart, the WBSEDCL is not a party to the said proceeding.

In this regard reference may be made to the ratio of the decision in Sk. Asgar -vs- State of West Bengal & Ors., reported in 2010 (4) CHN (CAL) 191 wherein this Court has held that an 12 order of status quo as to nature and character of suit property is not violated by effecting electric supply to an admitted occupier of such property.

In the light of the aforesaid discussion, I dispose of the instant writ petition directing the respondent no.2 herein to forthwith effect supply of electric connection to the premises of the petitioner. In order to effect such supply, if necessary, the respondent no.2 shall undertake necessary works as envisaged under Section 67 of the Electricity Act, 2003 and, if necessary, affix electric poles in the land in question by following the procedure laid down in Rule 3 of the Works of Licensees Rules, 2006. Necessary compensation may be adjudicated and paid to the concerned persons in accordance with law. Such supply of electric energy shall be made within eight weeks from the date of communication of this order.

The police authorities and the authorities under Rule 3 of Works of Licensees Rules, 2006 are requested to render all necessary assistance to the WBSEDCL for undertaking necessary works and effecting such supply. I, however, clarify that this order directing to supply of electric energy to the petitioner would not create any right or equity in his favour with regard to right, title, interest and the possession in respect of the premises. The said order relating to electric supply would also be subject to any order passed by the civil court in the aforesaid civil proceedings which is pending by and between the parties, as aforesaid.

With the aforesaid observations, the writ petition is disposed of. There shall be no order as to costs.

Urgent photostat copy of this order, if applied for, be given to the parties upon compliance of necessary formalities.

( Joymalya Bagchi, J. )

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